Florida has a statute that makes a dog owner liable for "any damage" to a person or domestic animal, meaning a non-bite injury. Section 767.01 provides as follows:
Owners of dogs shall be liable for any damage done by their dogs to a person or to any animal included in the definitions of "domestic animal" and "livestock" as provided by s. 585.01.
The Florida definition of "domestic animal" is set forth in section 585.01 subd. (10) as follows:
"Domestic animal" shall include any equine or bovine animal, goat, sheep, swine, domestic cat, dog, poultry, ostrich, emu, rhea, or other domesticated beast or bird. The term "animal," as used in this chapter, shall include wild or game animals whenever necessary to effectively control or eradicate dangerous transmissible diseases or pests which threaten the agricultural interests of the state.
Because the Florida dog bite statute imposes strict liability, there cannot be comparative negligence on the victim's part unless his conduct is more than a mistake:
"In a dog injury case, it is no defense that a plaintiff acted unreasonably (was contributorily negligent), unless his behavior was so blatant as to supersede the dog's behavior as the legal or proximate cause of plaintiff's injuries. In view of F.S. §§ 767.01 and 767.04, F.S.A. making an owner of a dog virtually an insurer of the dog's conduct, the conduct on the plaintiff's part superseding the behavior of the dog would have to be shown to be more than a mistake on the plaintiff's part as to the intention of the dog to bite or attack him." Smith v. Allison, ___ So.2d ___ (Fla. Court of Appeal, 1976).
The Florida dog bite statute, section 767.04, has a unique exception: there is no liability under the statute if the victim is 6 years of age or older, the incident happens on the dog owner's premises, and those premises contain a conspicuously posted sign saying "Bad Dog." The same exception applies if the sign says "Beware of Dog." Romfh v. Berman, 56 So.2d 127 (Fla. 1951). The sign must be in a prominent place and easily readable, so as to give actual notice of the risk of bite to the victim. Carroll v. Moxley, 241 So.2d 681 (Fla. 1970). If the victim is too young to read the sign, then the exception does not apply to that victim. Flick v. Malino, 356 So.2d 904 (Fla. Court of Appeal, 1978).
Two issues often arise when the dog bite victim is a child. One is comparative negligence, namely whether the child's conduct provoked the dog, thereby making the child a cause of the accident and reducing his recovery of damages. Florida has determined that a child under the age of six is conclusively presumed to be incapable of committing such negligence. Swindell v. Hellkamp, 242 So.2d 708 (Fla. 1970). When the child is six or older, the jury must decide whether he was capable of appreciating and avoiding the danger; if so, he can be regarded as comparatively negligent. Turner v. Seegar, 151 Fla. 643, 10 So.2d 320 (1942).
The other is whether the child's recovery can be reduced because his parent failed to adequately supervise him, thereby making the parent a cause of the accident and reducing the compensation payable by the dog owner or other liable party. The jury is entitled to apportion fault to the parent even where the parent is not named as a defendant in the lawsuit. Y.H. Investments, Inc., v. Godales, 690 So.2d 1273 (Fla. 1997).
In cases where the parent is comparatively liable because he failed to supervise his child, but the parent is not insured, there are two important rules. If the parent is without liability insurance, then parental immunity is not waived and the child cannot sue the parent. Ard v. Ard, 414 So. 2d 1066, 1067 (Fla. 1982). Similarly, because of the parent's lack of insurance, the dog owner or other liable party cannot make a claim against the parent for "contribution" -- i.e., a claim that the parent pay some of the compensation that the dog owner had to pay to the child. Joseph v. Quest, 414 So. 2d 1063, 1065 n.5 (Fla. 1982).
Attacks that occur upon the landlord's premises
A landlord has a duty to protect its tenants in connection with a vicious dog of which the landlord has knowledge. In White v. Whitworth, 509 So. 2d 378, 380 (Fla. 4th DCA 1987), the court stated, "A landlord who recognizes and assumes the duty to protect co-tenants from dangerous propensities of a tenant's pet is required to undertake reasonable precautions to protect co-tenants from reasonably foreseeable injury occasioned thereby." See also Vasquez v. Lopez, 509 So. 2d 1241 (Fla. 4th DCA 1987) (holding that landlord may be liable for tenant's dog if landlord knows dog is vicious and has sufficient control of premises to protect plaintiff).
Where the lease agreement includes rules which specifically prohibit certain breeds of dogs, the landlord can be held liable for hi's failure to enforce those rules despite knowledge that prohibited dogs reside upon the premises. For example, in Ramirez v. M.L. Management Co., Inc., 920 So.2d 36 (Fla. 4th DCA 2005), the landlord was aware that a tenant's pit bulls had threatened other tenants, but the landlord did not evict the owner of the pit bulls. When they attacked a child who was on adjacent property, the landlord was held liable.
However, there are exceptions to liability. There might not be liability where the victim is a trespasser or exceeded her invitation to be on the premises. For example, in Anderson v. Walthal, 468 So. 2d 291 (Fla. 1st DCA 1985), a woman coming to a home for a business purpose went around to the back of the home where a dog bit her. The landlord claimed that the woman had exceeded her "invitation" by wandering into an area behind the home where the dog was located. The court held that a jury question existed as to whether the woman had exceeded the scope of her business invitation.
Attacks that occur off the landlord's premises
In Tran v. Bancroft, 648 So. 2d 314 (Fla. 4th DCA 1995), it was held that a landlord has no duty to third parties for injuries caused by a tenant's dog where those injuries occur off the leased premises. In Tran, a landlord leased a single family home to a tenant who owned a dog known to the landlord to be vicious and over which the landlord could have exercised control. The dog jumped over the fence and bit a child in the neighboring yard. It was held that the victim had no remedy because the landlord had no duty to protect against harm occurring off the landlord's premises.
However, a landlord can be held liable for a dog attack that occurs off the premises under certain circumstances. In Ramirez v. M.L. Management Co., Inc., 920 So.2d 36 (Fla. 4th DCA 2005), a landlord was held liable for a dog attack which occurred off the premises but in an adjacent park that the landlord had advertised as an amenity of the premises. The court reasoned that "there was evidence from which a jury could conclude that the landlord "extended its operation" to the park, by advertising it as an amenity next to the complex and inviting its tenants to take advantage of it as part of the amenities."
The traditional doctrine that makes a person liable for harm inflicted by a domestic animal is referred to as "scienter" (the Latin word for "knowingly"), "common law strict liability," and "the one bite rule." As it applies to dog bites, this doctrine holds that a victim can recover compensation from the owner, harborer or keeper of a dog (a) the dog previously bit a person or acted like it wanted to, and (b) the defendant was aware of the dog's previous conduct. If either of those conditions are not met, however, this doctrine prevents the victim from recovering anything.
Scienter is a ground for liability in all American states. In Florida, scienter can be used to impose liability on someone other than the owner of the biting dog. Such a person is not included in the dog bite statute because it refers to the "owner" of the dog. For more information about this, see Ownership of a Dog.
Negligence per se is a doctrine that can help a victim recover compensation if the bite happened because the dog owner violated a statute, ordinance or regulation enacted for people's safety. Examples include a violation of a leash law, a law prohibiting dogs from being at large, or a law prohibiting dogs from trespassing.
In Florida, the violation of a non-traffic penal statute constitutes negligence per se, or negligence as a matter of law. deJesus v. Seaboard Coast Line Railroad Co., 281 So.2d 198 (Fla. 1973). The violation of a non-penal statute, ordinance or regulation constitutes evidence of negligence but not negligence as a matter of law. Richardson v. Fountain, 154 So.2d 709 (Fla. 2d DCA 1963). No Florida case has considered whether the violation of any of the laws above stated equates to evidence of negligence or negligence per se.
Negligence is another ground for liability in Florida. Negligence is the lack of ordinary care; that is, the absence of the kind of care a reasonably prudent and careful person would exercise in similar circumstances. If a person's conduct in a given circumstance doesn't measure up to the conduct of an ordinarily prudent and careful person, then that person was negligent. For example, letting a stray dog into a day care center is negligence. Common law remedies, such as for negligence, are an alternative to the dog bite statute in Florida. Stickney v. Belcher Yacht, Inc., 424 So. 2d 962 (Fla. Court of Appeal, 1983).
Florida's dog bite statute imposes strict liability upon dog owners for a bite that causes injury to a human being. Section 767.04 states as follows:
The owner of any dog that bites any person while such person is on or in a public place, or lawfully on or in a private place, including the property of the owner of the dog, is liable for damages suffered by persons bitten, regardless of the former viciousness of the dog or the owners' knowledge of such viciousness. However, any negligence on the part of the person bitten that is a proximate cause of the biting incident reduces the liability of the owner of the dog by the percentage that the bitten person's negligence contributed to the biting incident. A person is lawfully upon private property of such owner within the meaning of this act when the person is on such property in the performance of any duty imposed upon him or her by the laws of this state or by the laws or postal regulations of the United States, or when the person is on such property upon invitation, expressed or implied, of the owner. However, the owner is not liable, except as to a person under the age of 6, or unless the damages are proximately caused by a negligent act or omission of the owner, if at the time of any such injury the owner had displayed in a prominent place on his or her premises a sign easily readable including the words "Bad Dog." The remedy provided by this section is in addition to and cumulative with any other remedy provided by statute or common law.
Florida is a statutory strict liability state. A dog bite victim can recover damages pursuant to the dog bite statute and all of the causes of action discussed in Legal Rights of Dog Bite Victims in the USA, namely negligence, negligence per se, scienter, and intentional tort.
Just about all the interrogatories, deposition questions and more that a plaintiff's attorney will need, for less than the cost of typing them. Save hours of work! Good throughout the USA. Download and use today.
Tips and Tricks for Dog Bite Lawyers has all the practice pointers and winning strategies that a victim's lawyer needs. A highly rated legal best-seller. Good throughout the USA. Download and use today.